Inmate Says Dna Will Set Him Free

Investigators are re-examining the evidence against a Broward County man who was convicted of murdering an 8-year-old girl and has spent 24 years on Death Row.

James Franklin Rose, 55, is the first of Broward's 29 Death Row inmates to get a DNA review of his case by police and prosecutors that was spurred by the exoneration last year of another Broward prisoner, Frank Lee Smith, through genetic testing. Smith died of cancer while awaiting execution.

Rose, who is the longest-serving Death Row inmate from Broward, is anxious to have DNA tests done on the evidence in the case.

"He's not going to oppose it. He believes that it will exonerate him," said Rose's appellate attorney, Richard Rosenbaum.

Rose's first trial ended when a jury could not reach a verdict. He was later convicted by a Tampa jury in the kidnapping and murder of 8-year-old Lisa Lynn Berry in 1976. All appeals on his behalf have failed to get him off Death Row.

The case that he killed the Hollywood girl was based on flimsy circumstantial evidence, his defense attorneys maintain, and Rose has always insisted he had nothing to do with the murder of his ex-girlfriend's daughter.

"This guy has truly been unwavering in saying he was innocent," said Raag Singhal, who represented Rose in a 1997 resentencing. "He said he could not have done that to Lisa."

On the night of Oct. 22, 1976, Lisa disappeared from the Brunswick Lauderdale Lanes, a bowling alley on South State Road 7, where her mother worked as a barmaid. Lisa's sister, Tracy, 6, testified that she saw Rose with Lisa just before the little girl vanished.

Following a massive search by police and hundreds of volunteers, Lisa's body was found four days later in a canal west of Flamingo Road near Southwest 36th Court. Her body was nude, and she had been beaten on the head with a blunt object, police said. A paint-splattered hammer was found nearby. Rose was a house painter.

Witnesses said Rose was gone from the bowling alley from 45 minutes to an hour and a half, and when he returned he had a spot of blood on his pants. Bloodstains also were found on the side of his van, the passenger seat and the engine cover.

Blood-typing tests found it to be Type B, the same as the victim's, shared by about one in 10 people. Rose has Type A blood. He said the blood was from scratches he received while changing a tire.

DNA testing was not available at the time.

"The DNA could be really significant in this case," Singhal said.

Lisa's green sweater and pink pants were found the next afternoon behind a grocery store about a quarter of a mile from the bowling alley. A pink blouse, identified by her mother as Lisa's, was found among some paint cans in Rose's van.

Despite the evidence, two juries struggled to reach verdicts. The first trial held in Broward ended with a hung jury. Jurors appeared to be concerned that Rose could not have made the round trip from the bowling alley to the place where Lisa's body was found in the time he was gone.

"The timing of the trip had a lot to do with the jury's decision. You couldn't do it in that time frame," said Tom Bush, Rose's trial attorney.

The second trial was moved to Tampa because of heavy publicity. That jury found Rose guilty, but split 6-6 on whether he should get the death penalty.

In a controversial decision, the judge ordered jurors to break the tie and they later voted for death. A tie vote is supposed to mean a life sentence will be imposed because a majority vote is required for a death sentence. Two resentencings were ordered by appellate courts and both juries recommended death.

In Rose's last appeal, his lawyers argued that the first jury's tie vote should have been final. But the Florida Supreme Court rejected that argument in April.

Rose asked his attorneys in 1997 to consider getting DNA tests on the evidence in his case, but they had no standing to do so at the time and they decided to continue with his appeals before requesting the tests. Rose also has rejected suggestions by his attorneys that he consider arguing he had accidentally hit Lisa with his car, panicked because he was on probation, and dumped her body.

Lisa's mother, Barbara Berry, could not be reached for comment.

Fort Lauderdale Detective John Curcio said he has found three boxes of evidence from the Rose case and has begun sorting through them for relevant items to test.

Jerry Frank Townsend, convicted of four Broward murders, has recently been cleared by DNA testing. He is still in prison on two Miami-Dade murders and a rape while prosecutors there re-examine those cases.

Prosecutors said they are confident the review of Rose's case will confirm he was rightfully convicted.

"I believe that James Franklin Rose killed Lisa Berry," said Carolyn McCann, who works in the appeals unit of the Broward State Attorney's Office.

Ardy Friedberg can be reached at afriedberg@sun-sentinel.com or 954-356-4843.

Paula McMahon can be reached at pmcmahon@sun-sentinel.com or 954-356-4533.